Barrister strikes: Government gets on the wrong side of the law

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Chronic overwork, an overburdened legal system and cuts to funding recently pushed barristers to plan strike action

Disaster was narrowly averted for the Ministry of Justice in June when barristers voted to accept a £15 million offer to increase pay rates for reading documents in trials. The agreement brought to an end months of dispute, which had seen barristers ready to go on strike.

Their main gripe was an ever-increasing workload due to ongoing financial cuts to the criminal justice system that started in 2010.

Although the government welcomed the outcome of the vote, the Criminal Bar Association (CBA) said “anger and disillusionment” among its members remained. The pay deal was only narrowly pushed through, with 51.5% of barristers voting in favour.

This disillusionment was underlined by the Bar Council’s recent report Barristers’ Working Lives 2017: Barristers’ attitudes towards their working lives, which found that barristers across England and Wales are struggling with a number of factors such as workload, stress and work/life balance. Meanwhile The Secret Barrister, a book published anonymously in March by a junior barrister, has been causing a stir with its depiction of the consequences that overburdened staff and systems are having in terms of potential miscarriages of justice.

Both make for unsettling reading. Out of the circa 4,000 barristers who responded to the Working Lives report, 62% said they work at least a day a week for which they are not paid, 27% of criminal barristers and 33% of family barristers work more than 60 hours a week, the majority of barristers said they had a poor work/life balance, and 58% of criminal barristers and 66% of family barristers felt they were under too much work pressure and felt emotionally drained. Each of these areas showed significantly worse findings compared with when the same questions were asked in 2013.

So what role could HR potentially play in helping to mitigate some of these issues and to stop them surfacing in future? The answer to this is complicated by the unique setup of the legal profession whereby most barristers are self-employed and work within chambers that traditionally haven’t had an HR function.

As Sarah Vine, a barrister at Doughty Street Chambers and wellbeing director at the CBA, explains: “It might appear astonishing to anyone who works in HR to learn that an entire profession – particularly one within the legal sector – operates without the protections and procedural safeguards that most take for granted. Nonetheless, because the overwhelming majority of barristers are self-employed there is nothing that most people would recognise as an HR provision”.

“While most sets of chambers have policies for dealing with grievances, complaints, and equality and diversity, and the Bar Council actively promotes best practice, there is no uniformity across sets of chambers in terms of either the form or the enforcement of those policies – not least because governance structures vary between sets,” she continues. “Some chambers have a CEO, some have the more traditional head(s) of chambers. Most have a management committee. Few have any formal HR personnel.”

Given this lack of a structured HR function, it’s important that chambers are run well so that there is fair work allocation and barristers feel they are working in a supportive environment. But it’s a difficult balance to strike, according to Sam Mercer, head of policy, equality and diversity and CSR at the Bar Council.

“This is not easy to achieve against a backdrop of cuts to legal aid,” says Mercer. “Many barristers cannot take a break from work because they need to pack their diaries with back-to-back cases to make a decent living. That is out of the chambers’ hands and is sadly becoming a familiar feature of the profession, especially among barristers practising criminal and family law, where the government’s budget cuts have been the deepest.”

Mercer adds that some positive changes have occurred in the last few years, with more chambers and organisations that employ barristers in house introducing and “actively encouraging working practices that support resilience”.

Encouragingly some chambers have also started to introduce a more formalised HR function, according to Carolyn Entwistle, HR and administration manager at Landmark Chambers. “There has been a change towards adopting a more modern structure in terms of staffing, with chambers starting to more resemble other businesses,” she reports.

Measures have also been taken across the industry to improve barristers’ wellbeing. “The cut in fees is one of the issues that has had a huge impact on the wellbeing of barristers, and people who occupy HR roles within chambers should be looking at the ways in which the wellbeing of members could be improved,” adds Entwistle.

To help in this regard the Bar Council has launched a Wellbeing at the Bar initiative. “The initiative provides resources on a range of support for barristers, including social activity and support to combat increased remote working, and education around sleep, breaks between intensive periods of work and exercise,” says Mercer. “While it sounds simple this type of help often gets forgotten when under pressure. Largely based on a website, the Wellbeing at the Bar support resources go some way towards giving barristers the kind of wellbeing help that HR departments might be looking to give were it another profession or sector.”

Although the profession has been slow to adopt the sort of formalised HR structure that you’d expect to find in any private business or public organisation, in the future there are a number of factors that may make this more likely.

“These include rising awareness of wellbeing issues, more movement of barristers between sets, additional administration as a result of regulation such as the GDPR, and the trend for larger staff teams as chambers modernise and expand,” says Catherine Calder, joint chief executive of Serjeants’ Inn Chambers. “An early marker of this is the Bar Council’s announcement last Autumn that it had retained specialists from Veale Wasbrough Vizards to support sets of chambers with HR management.”

Such initiatives will go some way towards addressing some of the problems afflicting the profession. But as the narrow margin of the vote on the proposed new pay deal underlines, the issue of appropriate remuneration is unlikely to go away any time soon.

And, as outlined in The Secret Barrister, demotivated and chronically overworked criminal legal professionals could be having a concerning impact on the effectiveness of our justice system. Something that – though we might not think much day-to-day about becoming a victim of a crime or being falsely accused of one – could at some point affect us all.

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